Petition for Writ of Certiorari — Stoller v. Pure Fishing, Inc. (No. 08-494)

| y | .

Suprem

p rf Court US.

Ge.

_ OPFICE OF THE CLERK

AUG 24 2008

IN THE

SUPREME COURT OF THE UNITED STATES

LEO STOLLER,

Vv.

PURE FISHING, INC.,

FISHING SPIRIT, INC.,

FISHUSA, INC.,

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Leo Stoller

7115 W. North Avenue #272

Oak Park, Illinois 60302

(312) 545-4554

QUESTION PRESENTED

: Whether Circuit Rule 50 applies to rulings

on FRCP 60(b) motions.

PARTIES TO THE PROCEEDING

Petitioner, Leo Stoller, 62, is a nationally known

trademark expert, and a resident of the State of Illinois,

County of Cook, 7115 W. North Avenue, #272, Oak Park,

Illinois, 60302, (312) 545-4554; email:

ldms4@hotmail.com.

Respondents are Pure Fishing, Inc.., an Iowa

corporation, with its principal place of business in Spirit

Lake, Iowa, 1900 19 Street, Spirit Lake, Iowa, 51360,

d/b/a Berkley; Fishing Spirit, Inc., a Wisconsin

corporation, with its principal place of business in Spirit

Lake, lowa, 1900 18" Street, Spirit Lake, Iowa; Fish

USA, Inc., d/b/a FishUSA.com, with its principal place of

business at 901 W. 12" Avenue, Erie, Pennsylvania,

16501.

TABLE OF CONTENTS

ec lysus sie scndavhadacoeyee ove bins 1

NT ane esse siceassecnccscvnncesesss ove 2

CONSTITUTIONAL &

STATUTORY PROVISIONS .................... 2

ores iihigtiouevanseescovevesectess 3

REASONS FOR REVIEW ....................... 26

eri ehidiveiensesvaesiscsecsevisessees 27

I esl llihdacishphevhavcinaaresesescees 27

CERTIFICATE OF COMPLIANCE ............ 28

ii

' ‘TABLE OF AUTHORITIES

Case: Page(s)

Cooter & Gell v. Hartman Corp.,

496 U.S. 384, 399-400, 110 S. Ct. 2447,

110 L. Ed. 2d 359 (1990) ...................000. 6

National Hockey League v.

Metropolitan Hockey Club, Inc.,

427 U.S. 639, 96 5. Ct. 2778,

me ef 6

Pretzel & Stouffer v. Imperial Adjusters, Inc.,

28 IR3d 42, 45 (7th Cir. 1994) ................ 6

Momnzaerts v. Hartford Life &

Accident Insurance Co.,

No. 06-2952, 2007 U.S. App. LEXIS 322

ty eS: A 7

United States v. McLaughlin,

470 F.3d 698 (7th Cir. 2006)................. 7

Western States Inc. Co. v.

Wisconsin Wholesale Tire, Inc.,

148 F. 3d 756, 758 (7 Cir. 1998)

IE icco stich cn edbeasepuavenessses 23, 24

TABLE OF AUTHORITIES

(continued)

Pasquino v. Prather,

13 F. 3d 1049, 1051 (7™ Cir. 1994) ............ 24

Sims v. Lucas, 9 F. 3d 1293, 1294

(7” Cir, 1903) (per curiam) ........................ 23

Hagner v. US., 285 U.S. 427 (1932) ............ 20

Rose Baker Parons v. City of Aurora, et al.,

1172, U.S. Court of Appeals for the 7” Circuit),

2000 U.S. App. LEXIS 16237 ...................... 23

Dunphy v. McKee

134 F. 3d 1297, 1302 (7 Cir. 1998) ........... 24

Rose Baker Parons v. City of Aurora, et al.,

1172, U.S. Court of Appeals for the 7”

Circuit, 2000 U.S. App. LEXIS 16237......... 24

LaSalle Bank Lake View v. Seguban,

54 F. 3d 387, 393 (7™ Cir. 1995) ............... 24

Pasquino, 13 F. 3d at 1050 ..................... 24

In re Shell Oil Co.,

a. Oe Uy OMEIPTOD cde ccc cecceccosccccees 24

lv.

IN ‘THE SUPREME COURT OF THE UNITED

STATES

No.

LEO STOLLER,

v.

PURE FISHING, INC.,

FISHING SPIRIT, INC.,

FISHUSA, INC.,

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment below.

(1)

OPINIONS BELOW

The opinion dated October 4, 2006 of the United

States District Court for the Northern District of Illinois

at Appendix A-1 is unpublished. This opinion granted a

default judgment against Petitioner for $96,751.81, and

cancelled 35 STEALTH federal trademark registrations.

The opinion dated April 12, 2007 of the United

States District Court for the Northern District of Ilinois

at Appendix A-2 is unpublished. This opinion denied

Petitioner's motion for relief from judgment.

The opinion dated May 29, 2008 of the United

States Court of Appeals for the Seventh Circuit at

Appendix A-3. This opinion affirmed the decision of the

United States District Court for the Northern District of

Illinois which is the subject of this appeal.

2

JURISDICTION

The date on which the United States Court of

Appeals decided my case was May 29, 2008. The

jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The Petitioner's Fifth and Fourteenth

Amendments of due process and equal protection.

STATEMENT

This is an action for trademark infringement

arising out of an alleged violation of the Lanham Act and

violation of the Illinois Consumer Fraud and Deceptive

Trade Practices Act. The trial court entered a default

judgment against the plaintiffs/counter-defendants as a

sanction for Leo Stoller signing a pleading with the

permission of his attorney, Peter Woods.

3

Plaintiff/Counter-Defendant, Leo Stoller, as an

individual and doing business as Central Mfg. Co., doing

business as S Industries, Inc., doing business as

Terminator, doing business as Stealth, doing business as —

Rentamark, doing business as Rentamark.com, doing

business as Stealth Sports and Marine, doing business as

Association Network Management, doing business as

USA Sports Co., Inc., doing business as Stealth

Industries, Inc., doing business as Central Mfg. Inc.,

doing business as S Industries, doing business as Sentra

Industries, Inc.

Leo Stoller sought relief from final “arbitrary and

capricious” judgments and orders entered by the District

Court, Judge George Lindberg, on November 16, 2005,

September 15, 2006, October 4, 2006, November 13, 2006

order granting motion for filing of bond to secure costs

on appeal; December 12, 2006, and April 12, 2007. After

Stoller's initial appeal was denied by the Seventh Circuit,

when the Seventh Circuit denied Stoller's first request

for an extension of time to file his initial appeal brief,

Stoller then filed a FRCP Rule €0(b) motion before

District Court Judge George Lindberg.

4

According to FRCP Rule 60(b), defendants may

seek relief from a final judgment, order, or proceeding

within a reasonable time, and not more than one year

after the judgment, order, or proceeding was entered or

taken, for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect;

(2) newly discovered evidence which by due

diligence could not have been discovered in

time to move for a new trial under

Rule 59(b);

(3) fraud (whether heretofore denominated

intrinsic or extrinsic), misinterpretation,

or other misconduct of an adverse party.

Defendants will also show infra that:

(4) the judgment is void; and,

(5) other reasons justify relief from the

operation of the judgment (see Rule 60 (b)

+)

The District Court’s above orders and judgments

make a number of plain and prejudicial errors as listed in

subparagraphs (1), (2), (3), (4) and (5) above.

Leo Stoller operates a trademark licensing

business promoting the federal registration STEALTH.

Lee Stoller held rights to 35 STEALTH federal

trademark registrations, including Federal Trademark

Registration No. 1,766,806, which registered on April 20,

1993, for the following goods: fishing tackle floats

(bobbers). Leo Stoller licensed Lindy-Little Joe, a fishing

tackle company, for over 10 years to use the mark

STEALTH on a line of fishing tackle sold through the

major retailers such as K-Mart and Walmart, etc. In

2005, Leo Stolier learned that Pure Fishing, Inc. and

Fishing Spirit, Inc. commenced used of the name

Spiderwire Stealth on fishing line. Pure Fishing, Inc.

filed a trademark apolication, Serial No. 78-546,457 for

the mark SPIDERWIRE STEALTH on January 12, 2005

for the use on fishing lines in International Class 28.

6

On August 16, 2005, the United States Patent and

Trademark Office’s examining attorney Jill I. Prater

issued Section 2(d) -

Likelihood of Confusion Refusal to the

Defendants/Counter-Plaintiffs, Pure Fishing, Inc. and

Spirit Fishing, Inc.

Order Dated November 16, 2005

On November 16, 2005, the District Court

dismissed Petitioner's underlying case, with prejudice,

and entered a default judgment against each of the

counter-defendants on the grounds that Leo Stoller

signed a pleading with the permission of Peter Woods,

Esq. Leo Stoller asserts that the sanction imposed on

November 16, 2005 was excessive and disproportionate

to the alleged offense and conduct of Leo Stoller and

Peter Woods. See transcript of hearing before Judge

Lindberg. A default judgment is a sanction for

misconduct during the litigation. Appellate review of

decisions to impose, or withhold sanctions is deferential.

See e.g., Cooter & Gell v. Hartman Corp., 496 U.S. 384,

399-400, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990);

National Hockey League v. Metropolitan Hockey Club,

—

7

Inc., 427 U.S. 639, 96 5. Ct. 2778, 49 L. Ed. 2d 747 (1976);

Pretzel & Stouffer v. Imperial Adjusters, Inc., 28 TR3d 42,

45 (7th Cir. 1994). |

District Court Judge Lindberg abused his

discretion by entering a severe default judgment for a

wrong that apparently caused no prejudice to the adverse

perty. See Momnzaerts v. Hartford Lyfe & Accident

Insurance Co., No. 06-2952, 2007 U.S. App. LEXIS 322

(7th Cir. Jan. 8, 2007). Cf. United States v. McLaughlin,

470 F.3d 698 (7th Cir. 2006).

A default judgment is a sanction for misconduct

during the litigation. Appellate review of decisions to

impose, or withhold, sanctions is deferential. See, e.g.,

Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 399-400,

110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990); National

Hockey League v. Metropolitan Hockey Club, Inc., 427

U.S. 639, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976); Pretzel

& Stouffer v. Imperial Adjusters, Inc.,U.S. 28 F. 3d 42, 45

(7 Cir. 1994).

8

District Court Judge Lindberg abused his

discretion by entering such a severe default judgment for

a wrong that apparently caused no prejudice to the

adverse party. See Mommaerts v. Hartford Life &

Accident Insurance Co., No. 06-2952, 2007 U.S. App.

LEXIS 322 (7 Cir. Jan. 8, 2007), Ct. United States v.

McLaughlin, 470 F. 3d 698 (7" Cir. 2006). See transcript

of hearing.

District Court Judge Lindberg’s’ excessive

sanction and default judgment was unconstitutional in

that it was disproportionate to the alleged offense, Leo

Stoller signing a pleading with an attorney's permission.

Judge Lindberg also abused his discretion under

FRCP 60(b) when he found that Leo Stoller was a

vexatious litigant and barred Leo Stoller from initiating

any lawsuits in the Northern District of Illinois. Stoller's

motion for relief under FRCP 60(b) introduced new

evidence which supported reversal of Judge Lindberg‘s

findings.

9

As a direct result of Judge Lindberg's order, Leo

Stoller was forced to file for Chapter 13 bankruptcy on or

about December 10, 2005, Case No. 05 B 64075.

Order Dated December 19, 2005

In an order dated December 19, 2005, the District

Court stated:

“Before the Court is defendants/counter-plaintiffs’

motion to enforce judgment [191-1] and

counter-defendants’ motion to vacate default

judgment [201]. Both motions are denied because

to date, judgment pursuant to F.R.C.R 58 has not

been entered in this case. In this Court’s

November 16, 2005 order [185], it found

each of the counter-defendants to be in

default. However, the Court has not conducted a

prove-up hearing or made any findings as to

appropriate damages, if any, stemming from

defendants’ counterclaims.

Defendants/counter-plaintiffs are ordered to file a

brief in support of their purported damages,

including all necessary affidavits and evidentiary

support, by 11/16/05. Defendant’s response is due

10

1/30/05 (sic). Upon review of the parties’ written

submissions, the Court will determine if an

evidentiary hearing is necessary.

Defendants/counter-plaintiffs’ request for

sanctions pursuant to Rule 11 is denied for failure

to comply with F.R.C.P. 11(c)(1)(A), which

provides that such a motion must be made

fe wt enge from other motions or requests.’ In

violation of F.R.C.P. 1 1(c)(1)(A),

defendants/counter-plaintiffs made their request

for Rule 11 sanctions as part of a combined motion

to enforce judgment. [191].”

The Court denied Petitioner's request for sanctions.

Order Dated February 3, 2006

The February 3, 2006 order stated in part:

“In the interests of efficiency and judicial |

ae and because of the relationship between

Mr. Stoller and his wholly-owned corporate

counter-defendants, the Court exercises its

discretion and stays all proceedings in this case,

pending the resolution of Mr. Stoller’s

ij

bankruptcy proceedings. The Court also finds that

counter-plaintiffs, based on their own admission,

have waived their rights to pecuniary damages as

to each counter-defendant except Mr. Stoller...”.

Trustee Richard Fogel, Esq. and counsel for the Pure

Fishing, Inc., knowingly and willfully entered into a

consent judgment for $969,751.81, which the Court

entered on December 12, 2006, when Richard Fogel and

counsel for Pure Fishing knew or should have known

that the Defendants/Counter-plaintiffs’ had waived their

right to pecuniary (monetary) damages as to “as to each

counter-defendant except Mr. Stoller.”

Pursuant to the law of the case, the Agreed Final

Order entered and executed by Judge Lindberg on

December 12, 2006 is void ab initio.

DEFENDANTS/COUNTER DEFENDANTS

FRAUD ON THE ILLINOI DISTRICT COURT

The court in order dated February 3, 2006 stated

that the “ counter-plaintiffs, based on their own

12

admission, have waived their rights to pecuniary

(monetary) damages as to each counter-defendant except

Mr. Stoller...”. See also Appellant's Motion to Vacate

Nunc Pro Tunc Settlement Agreement and Final Order

Approving Settlement Agreement with Google, Inc. and

Trustee's Local 54.3(A) Joint Statement in the Pure

Fishing Case.

Judge Lindberg Recognizes That The Failure To

Serve Leo Stoller Results In A Denial Of The

Defendant/Counter-Plaintiffs’

Motion For Filing A Bond To Secure Costs On

Appeal

Judge Lindberg recognizes in a docket entry that

was made by the Clerk on Thursday, October 26, 2006:

“MINUTE entry before Judge George W.

Lindberg: The motion for filing of Bond to Secure

Costs on Appeal [230] is denied without prejudice

for failure to serve Leo Stoller with a copy of the

motion. To the extent

Defendants/Counter-Plaintiffs’ motion seeks an

order requiring Leo Stoller, personally, to pay a

bond,

13

Defendants/Counter-Plaintiffs must provide Leo

Stoller with notice of the motion.”

Judge Lindberg Establishes The Law Of The Case

That Failure toServe Notice on Leo Stoller Is

Fatal To The Defendants/Counter-

Plaintiffs’ Filing Of A Pleading

Judge Lindberg established that failure to serve

Leo Stoller notice was fatal to the

Defendants/Counter-Plaintiffs’ filing of a motion for

costs on appeal. Judge Lindberg ordered the

Defendants/Counter-Plaintiffs to file and reserve the

notice.

Order Dated August 22, 2006

The order stated:

“MINUTE entry before Judge George W.

Lindberg: Response due 9/11/2006 to the motion

by defendants Fishing Spirit, Inc., Fishusa, Inc.,

Pure Fishing, Inc., Counter Claimants Fishing

Spirit, Inc., Fishusa, Inc., Pure Fishing, Inc. for

judgment and for motion to Lift Stay and Enter

14

Final Judgment. Reply due 9/20/2006. Ruling set

for 10/18/2006 at 9:30 a.m. Response due

9/11/2006 on motion by Defendants Fishing Spirit,

Inc., Fishusa, Inc., Pure —. Inc., Counter

Claimants Fishing Spirit, Inc., Fishusa, Inc., Pure

Fishing, Inc. Third Motion for Judicial Notice.

Reply due 9/20/2006. Ruling set for 10/18/2006 at

9:30 a.m. No court appearance required on

8/24/2006.”

Leo Stoller, pro se, never received a copy of the

Minute Order dated August 22, 2006. Under 1RR.C.P.

Rule 60(a) - Failure to provide notice to a party of a Court

order and/or a pleading is sufficient grounds to vacate an

order and/or judgment as a matter of law.

August 31, 2006

Leo Stoller’s Chapter 13 was converted to a

Chapter 7, and Richard M. Fogel was appointed Trustee

on September 5, 2006. Trustee Richard Fogel informed

Plaintiff's attorneys,

15

Fioretti & Lower, that they have no authority to act on

behalf of Central Mfg. Inc. and Stealth Industries, Inc.

Order Dated September 15, 2006

Leo Stoller never received the Minute Order of

George W. Lindberg dated September 15, 2006.

September 20, 2006

Attorneys Fioretti & Lower, who represented

Central Mfg. Inc. and Stealth Industries, Inc., filed a

Motion for A Request For An Extension of Time to

Respond to Defendants/Counter-Plaintiffs’ Motion to

Lift Stay and Enter Final Judgment and Third Motion

for Judicial Notice. The said motion by Fioretti & Lower

was filed on behalf of Central Mfg. Co., Central Mfg, Inc.,

S Industries, Inc., Stealth Industries, Inc., and Sentra

Industries, Inc. Leo Stoller was not a party to Fioretti &

Lower’s request for an extension of time because Trustee

Richard Fogel had informed Fioretti & Lower that they

had no authority to continue to represent any parties in

the Pure Fishing case. Stoller

16

filed a motion before Bankruptcy Judge Jack

Schmetterer requesting leave to have Fioretti & Lower

represent his companies in the Pure Fishing case.

Trustee Fogel opposed Stoller's request and Judge

Schmetterer denied Stoller's request. After Richard

Fogel was appointed Trustee on September 6, 2007,

Stoller had no legal ‘representative before Judge

Lindberg in the Pure Fishing case. Richard Fogel

breached his fidiuciary duty to the estate of Leo Stolelr

by failing to allow Fioretti & Lower to represent Leo

Stoller's companies in the Pure Fishing case. Leo Stoller

had moved to disqualify Richard Fogel as Trustee in

Bankruptcy proceeding No. 05 B 64075. This Appeal is

pending before Judge William J. Hibbler, Case No: 06 C

06950. Leo Stoller was defending himself pro se, and Leo

Stoller was never notified of

Defendants/Counter-Plaintiffs’ Motion to Lift Stay and

Enter Final Judgment and Third Motion for Judicial

Notice. The Defendants/Counter-Plaintiffs filed their

Motion to Lift Stay and Enter Final Judgment on August

17, 2006. The only party that was noticed was Robert W.

Fioretti & John B. Lower. Leo Stoller was not ever

notified by Timothy C. Meece, counsel for Pure

17

Fishing, or any other party, that the motion to lift the

stay and enter final judgment was filed on August 17,

2006. Failure to serve notice on Leo Stoller is fatal to the

final orders and judgments issued in this case and

demand that the Court vacate the final judgments and

orders in this case for failure to serve on Leo Stoller

Defendants/Counter-Appellant's Motion to Lift The Stay

and Enter Final Judgment. The Court had already

established in this case that failure to notice Leo Stoller

resulted in the denial of “ ... to the extent

Defendants/Counter-Plaintiffs’ motion seeks an order

requiring Leo Stoller, personally, to pay a _ bond,

Defendants/Counter-Plaintiffs must provide Leo Stoller,

pro se with notice of the motion.

The attorneys for Defendants/Counter-Plaintiffs

clearly took unfair advantage of the fact that Leo Stoller

was in bankruptcy and refused and/or failed to notify Leo

Stoller. Attorneys Fioretti & Lower, who represented the

corporate Plaintiffs-Counter/Defendants, never

represented Leo Stoller individually. Leo Stoller filed his

Pro Se Appearance SA-

18

086. The Defendants/Counter-Plaintiffs had an

obligation to serve Leo Stoller notice which Judge

Lindberg recognized in his order dated October 26, 2006.

Under F.R.C.P. Rule 60, Leo Stoller was entitled

to relief from judgment and orders in the Pure Fishing

case for failure of the Defendants/Counter-Plaintiffs not

providing notice to Leo Stoller.

After Richard Fogel was appointed Trustee of Leo

Stoller’ s Estate on or about September 6, 2006, Mr.

Fogel had instructed Fioretti & Lower that they did not

have any authority to proceed on behalf of Leo Stoller’s

corporations in the Pure Fishing case.

September 26, 2006

Leo Stoller never received the September 26, 2006

order SA-136.

19

Order Dated October 4, 2006

Judge Lindberg grants

Defendants/Counter-Plaintiffs’ Motion to Lift Stay and

Enter Final Judgment. Leo Stoller never received notice

of Defendants/Counter-Plaintiffs’ Motion to Lift Stay

and Entry of Final Judgment. Defendants failure to

serve Leo Stoller its Motion to Lift Stay and Enter Final

Judgment is fatal to Judge Lindberg’s entry of an order

granting Defendants/-Counter-Appellant's motion to lift

stay and entry of final judgment on October 4, 2006. Leo

- Stoller requested that Judge Lindberg, as a matter of

law, vacate its judgment entered on October 4, 2006

pursuant to Rule 60(b).

October 13, 2006

Defendants/Counter-Plaintiffs filed a Bill of Costs

on October 13, 2006 SA-142. The Defendants failed to

notify Leo Stoller of the Motion for Bill of Costs. The said

motion is void ab initio and any judgment that results

therefrom for failure to notify Leo Stoller.

20

October 18, 2006

Defendants/Counter-Plaintiffs filed a Motion for

Filing of Bond To Secure Costs on Appeal and Petition

for Award of Attorney Fees and Nontaxable Costs. Both

motions are void ab initio for failure to serve a proper

notice on pro se Plaintiff/Counter-Defendant Leo Stoller

and any orders and/or judgments that resulted

therefrom.

Judge Lindberg Recognizes That The Failure To

Serve Leo Stoller Results In A Denial Of The

Defendant/Counter-Plaintiffs’

Motion For Filing A Bond To Secure Costs On

Appeal

Judge Lindberg recognized in a previous docket

entry that was made by the Clerk on Thursday, October

26, 2006:

21

“MINUTE entry before Judge George W.

Lindberg: The motion for filing of Bond to Secure

Costs on Appeal [230] is denied without prejudice

for failure to serve Leo Stoller with a copy of the

motion. To the extent

Defendants/Counter-Plaintiffs’ motion seeks an

order requiring Leo Stoller, personally, to pay a

bond, Defendants/Counter-Plaintiffs must provide

Leo Stoller with notice of the motion.”

Docket entry [235] consists of Local Rule 54.3(a) Joint

Statement and Agreed-Order by Pure Fishing, Inc.

(Attachments: #1 Exhibit 1 - Order of conversion and

appointment of trustee - Order authorizing trustee

action for corporations), Exhibit 18. Leo Stoller was

never served with Defendants/-Counter-plaintiffs’ Local

Rule 54.3(a) Joint Statement and Agreed Order and is

void ab initio for the same reason that Judge Lindberg

denied the Defendants/Counter-plaintiffs’ motion for

filing a bond to secure costs on appeal.

December 9, 2006

Leo Stoller filed and served on counsel for Pure

22

Fishing, Inc., Timothy C. Meece, and Richard M. Fogel,

Trustee, Stoller’ s Motion To Object To Agreed Rule

54.3(a) Joint Statement And Agreed Final Order Which

Provided A Judgment In Favor Of Pure Fishing in the

Amount of $969,751.81. Stoller objected to

Defendants/Counter-plaintiffs' Local Rule 54.3(a) Joint

Statement and Agreed Final Order. See Stoller’s Motion

To Object To Agreed Rule 54.3(a) Joint Statement And

Agreed Final Order Which Provided A Judgment In

Favor Of Pure Fishing In The Amount of $969,751.81.

“Leo Stoller has filed an appearance in this case

and is acting pro se. Leo Stoller never received any copy

of Pure Fishing ‘time and work records’ on which their

fee award request is based. In clear violation of Local

Rule 54.3(a), Pure Fishing made no attempt in good faith

to meet and confer with Leo Stoller ‘to agree on the

amount. of fees or related nontaxable expenses that

should be awarded prior to filing a fee motion’, in

violation of Lk 53.3(d). Pure Fishing’s request for an

award of attorneys fees and nontaxable costs of

$759,303.20 is void at initio for failing to comply with

Local Rule 54.3 - Attorney’s Fees and Related Non-

taxable Expenses.

Leo Stoller further objects to any agreement that

the Trustee Richard Fogel enters into with Pure Fishing

as it relates to Leo Stoller’ s companies Central Mfg. Inc.

d/b/a Central Mfg. Co. and Stealth Industries, Inc. on the

grounds that Leo Stoller has filed a request to remove

Richard Fogel as Trustee because he is not acting in the

best interest of the creditors of the estate of Leo Stoller.

As evidenced by the fact that Richard Fogel did not object

to even one entry of Pure Fishing’s request for

$759,303.20 despite the fact that upon information and

belief, the said fee request contains double billings for

the same work that was performed by two different law

firms in violation of the controlling case law, the

Continental case regarding attorneys fees. Leo Stoller is

appealing his motion before the Bankruptcy Court to

disqualify Richard Fogel as trustee of Leo Stoller’ s

estate. Therefore, any agreement entered into by Mr

Fogel is tainted and should be rejected until the Appeals

court rules on Stoller’s motion to disqualify trustee

Richard Fogel.”

24

Leo Stoller served his Motion to Object to Agreed

Rule 54.3(a) by mail to the attorneys of record and

hand-delivered it to the Clerk of the Court, U.S. District

Court, 219 S. Dearborn, Chicago, Illinois, on December 9,

2006.

“The fact that a party mails a document creates a

rebuttable presumption that the addressee actually

received the mailing.” Gentleman wrote, citing Hagner v.

Us., 285 U.S. 427 (1932). “Further, a party need not

show conclusively that a document was placed in the

mail; a custom or policy of mailing creates a presumption

that such mailing occurred.”

Decembex 12, 2006

Notwithstanding Stoller’s filing of his Motion To

Object To Agreed Rule 54.3(a) -Joint Statement And

Agreed Final Order Which Provided A Judgment In

Favor Of Pure Fishing In The Amount of $969,751.81, on

December 9, 2006, Judge Lindberg issued the following

Minute Order.

25

“MINUTE entry before Judge George W.

Lindberg: Mr Stoller’s motion to object to the agreed

54.3(a) joint statement will not be heard on 12/12/06

because Mr. Stoller failed to comply with the court’s

three-day notice requirement for the presentation of all

motions. Further, the motion to object to the agreed Rule

54.3(a) joint statement [256] is denied as moot because

the court entered the agreed order before it received the

instant motion.

Stoller clearly filed his said motion with the

Court’s three-day notice requirement. Furthermore, the

Court acknowledges that it received Stoller’ s said

motion and denied Stoller’ s motion as moot “because the

Court entered the agreed order before it received the

instant motion.” This was clear error, abuse of discretion

and grounds for reversal under Rule 60(b).

Judge Lindberg Establishes The Law Of The Case

That Failure to Serve Notice on Leo Stoller Is

Fatal To The Defendants/Counter-

Plaintiffs’ Filing Of A Pleading

26

Judge Lindberg established that failure to serve

Leo Stoller notice was fatal to the

Defendants/Counter-Plaintiffs’ filing of a pleading or

motion on Leo Stoller. All of the pleadings that were filed

in this case which were filed without service upon Leo

Stoller, deprived Leo Stoller of his due process and equal

protection under the Fifth and Fourteenth Amendments

of the US. Constitution. The

Defendants/Counter-Plaintiffs’ failure to serve Stoller

the pleadings which led to the judgments in this

proceeding demanded that, pursuant to 1RR.C.P. 60(b),

the Court relieve Leo Stoller from any final judgment

and/or orders.

Further, in view of the fact the orders and

judgments in this case are defective as against one party,

Leo Stoller, they are therefore defective against all

parties, Plaintiffs/Counter-Defendants, and the Court is

requested to vacate in its entirety any and all orders

and/or judgments entered against the

Plaintiffs/Counter-Defendants as a matter of law.

27

Judge Lindberg’s Reversible Error

The Seventh Circuit was unable to consider

whether the District Court abused its discretion in

denying the motion to vacate because the court's one

sentence order does not explain its decision. Circuit Rule

50 provides that "whenever a district court resolves any

claim or counterclaim on the merits, terminates the

litigation in its court ... the judge shall gives his or her

reasons, either orally on the record cr my written

statement." The purpose of this Rule is three-fold: "To

create the mental discipline that an obligation to state

reasons produces, to assure the parties that the court has

considered the important arguments, and to enable a

reviewing court to know the reasons for the judgment."

See Western States Inc. Co. v. Wisconsin Wholesale Tire,

Inc., 148 F. 3d 756, 758 (7" Cir. 1998) (per curium);

Pasquino v. Prather, 13 F. 3d 1049, 1051 (7 Cir. 1994);

Sims v. Lucas, 9 F. 3d 1293, 1294 (7 Cir. 1993) oid

curlum).

Judge Lindberg’s April 12, 2007 does not satisfy

Circuit Rule 50. The district court did not explain why,

for the purposes of Rule 60(b)(1) review. The Court's

28

order is inadequate because it does not even consist of a

bare conclusion of law or an "analysis of the relevant

facts and law leading to its conclusions." Western States,

id. Dunphy v. McKee, 134 F. 3d 1297, 1302 (7 Cir. 1998);

LaSalle Bank Lake View v. Seguban, 54 F. 3d 387, 393

(7 Cir. 1995); Pasquino, 13 F. 3d at 1050; In re Shell Oil

Co., 966 F. 2d 1130, 1132-33. Therefore, the order must

be vacated and remanded to the district court for an

explanation consistent with Circuit Rule 50. See Western

States, 148 F. 3d at 759-60; Dunphy, 134 F. 3d at 1302;

Sims, 9 F. 3d at 1294. See Rose Baker Parons v. City of

Aurora, et al., 1172, U.S. Court of Appeals for the 7

Circuit), 2000 U.S. App. LEXIS 16237. This Court has

also the discretion to grant the Appellant the relief

requested below because Judge Lindberg has evidenced a

clear bias and prejudice against Leo Stoller thus far.

Judge Lindberg even refused to clarify his order dated

October 4, 2006. Leo Stoller merely made a request for

clarification.

In a terse response, Judge Lindberg refused to

even clarify his order. The record is clear that Judge

Lindberg has issued the most severe sanction in the

29

history of the Northern District of Illinois, canceling all

of Stoller's STEALTH marks, fining Stoller over

$950,000 as a sanction disproportionate to Stoller's

alleged wrongdoing. Now Judge Lindberg refuses to

even clarify his October 4, 2006 order. There is no

question that Judge Lindberg is biased and prejudiced

against Leo Stoller.

REASONS FOR REVIEW

The Seventh Circuit dismissed Stoller's initial

appeal. Subsequently, Stoller filed a motion under FRCP

60(b) before the District Court, Judge Lindberg. Judge

Lindberg erroneously denied Stoller's FRCP 60(b)

motion with a one word order dated April 12, 2007, in

violation of Circuit Rule 50.

Circuit Rule 50 states:

Whenever a district court resolves any claim or

counterclaim on the merits, terminates the litigation

in its court (as by remanding or

30

transferring the case, or denying leave to proceed in

forma pauperis with or without prejudice), or enters

an interlocutory order that may be appealed to the

court of appeals, the judge shall give his or

her reasons, either orally on the record or by written

statement. The court urges the parties to bring to

this court’s attention as soon as possible any failure

to comply with this rule.

The Seventh Circuit ruled on May 29, 2008:

We have never explicitly stated whether Circuit

Rule 50 applies to rulings on Rule 60(b) motions, nor do

we have any occasion to resolve that question here ....

SUMMARY

In view of the fact that the Seventh Circuit has

refused to clarify whether Circuit Rule 50 applies to

rulings on FRCP 60(b) motions, this Court is requested

to issue a clarification.

31

CONCLUSION

Petitioner is requesting that this Court resolve

the question as to whether Circuit Rule 50 applies to

rulings on FRCP 60(b) motions.

Vet llo submitted,

Leo Cot ble

7115 W. North Avenue, #272

Oak Park, Illinois 60302

(312) 545-4554

32

STATEMENT

Petitioner certifies that all materials are listed in

the appendix contained in this brief.

Nop lhe

Leo Stoller

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LEO STOLLER,

v.

PURE FISHING, INC.,

FISHING SPIRIT, INC.,

FISHUSA, INC.,

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

APPENDIX

DECISION

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

LEO STOLLER

v.

PURE FISHING, ET AL.

Case No: 05-C-725

Date: April 12, 2007

Before George W. Lindberg, Judge

Mr. Stoller's motion for relief from judgment is denied.

No appearance required on 4/25/07 at 9:30 a.m.

A-2

IN THE

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Case: No. 07-1936

Date: May 29,2008

LEO STOLLER,

Plainttff/Counter-Defendant-Appella

nt~

PURE FISHING INC., et al.,

Defendants/Counter-Plaintiffs-Appel

lees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 725—George W. Lindberg. Judge.

A-3

SUBMITTED DECEMBER 19, 2007'~DECIDED MAY

29,2008

Before RIPPLE, MANION, and WOOD, Circuit

Judges.

WOOD, Circuit Judge. After appealing a default

judgment entered against him and having that appeal

dismissed for failure to prosecute, Leo Stoller filed a

motion under Fed. R. Civ. P. 60(b) asking the district

court to reconsider the underlying merits of the default

judgment. Stoller now appeals the district court’s denial

of the Rule 60(b) motion. We affirm.

The present dispute stems from a lawsuit for

trademark infringement that Stoller, along with one of ©

his companies known as Central Manufacturing

Company (CMC), Med against Pure Fishing

Incorporated (FF1) and other related entities. After

protracted and contentious litigation that expanded to

' After examining the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the

briefs and the record. See FED. R. APP. P. 34(a)(2).

include multiple counterclaims, the district court entered

a default judgment against CMC and Stoller and awarded

PFI damages, costs, and attorneys’ fees on one of its

counterclaims. Stoller (apparently purporting to act on

behalf of both CMC and himself) Med a timely notice of

appeal, which was docketed in this court as No. 06-3792.

PFI then filed a motion in the district court to require

Stoller to post a bond as security for the costs and fees

associated with his appeal. he district court granted the

motion, and Stoller promptly filed a second notice of

appeal, which was docketed as No. 06-4057. We

construed this second notice as a motion to suspend

enforcement of.the order requiring an appeal bond. We

then denied the motion and in an order dated February

12, 2007, we dismissed the appeal in No. 06-3792 for

failure to prosecute because Stoller failed to pay the bond

or Me an appellate brief.

Two months after we dismissed his appeal, Stoller

filed in the district court a Rule 60(b) motion in which he

rehashed the merits of his underlying lawsuit and

complained about various orders that had been entered

against Aim in that lawsuit. The district court denied the

Rule 60(b) motion in a one-line order; that action

prompted the present appeal. Stoller argues that the

district court abused its discretion when it denied the

Rule 60(b) motion and that the district court’s one-line

order violated Circuit Rule 50. He also complains about

an order designating him as a vexatious litigant who

must receive prior authorization before filing any new

lawsuits, though it is not clear whether his challenge

refers to an order issued by the district judge or by the

Executive Committee of the Northern District, both of

which barred him from further filings.

We review a district court’s denial of relief under Rule

60(b) for abuse of discretion. See Arrieta v. Battaglia, 461

F.3d 861, 864 (7th Cir. 2006). The district court’s order

here was decidedly not an abuse of its discretion, because

all of the arguiments in Stoller’s Rule 60(b) motion could

have been addressed by this court in the underlying

appeal that was dismissed for failure to prosecute. A Rule

60(b) motion is not a substitute for appeal, and thus

Stoller’s attempt to use it as such was appropriately

rejected. See Bell v. Eastman Kodak Co., 214 F.3d 798,

801 (7th Cir. 2000); Oxxford Clothes XX, Inc. v.

Expeditors Int'l of Wash., Inc., 127 F.3d 574,577(7th Cir.

1997).

Stoller’s argument that the district court’s one-line

order violated Circuit Rule 50 fares no better. Circuit

Rule 50

reads as follows:

Whenever a district court resolves any claim or

counterclaim on the merits, terminates the litigation

in its court (as by remanding or transferring the

case, or denying leave to proceed in forma pauperis

with or without prejudice), or enters an interlocutory

order that may be appealed to the court of appeals,

the judge shall give his or her reasons, either orally

on the record or by written statement. The court

urges the parties to bring to this court’s attention as

soon as possible any failure to comply with this rule.

We have never explicitly stated whether Circuit Rule 50

applies to rulings on Rule 60(b) motions, nor do we have

any occasion to resolve that question here. We note,

however, that the matters described in Rule 50 all refer

to events leading up to the final judgment in a case,

whereas FED. K Civ. P. 60 provides a number of

mechanisms to correct or change a judgment or order.

Once the reasons for the judgment or order have been

stated properly, as Rule 50 requires, it may be enough for

a district court to signal its conclusion that no change is

required with a very brief statement. In this case, even if

Rule 50 applies, its purposes were fully met. The district

court’s reasoning is clear from both the record and the

court’s brief statement, and thus there is no need to

remand for a more fulsome explanation. See Books uv.

Chater, 91 F.3d 972, 978 (7th Cir. 1996). The district

court gave ample insight into its thinking in its orders

addressing the unc, lying merits of the suit, and Stoller

raised no new issues in his Rule 60(b) motion. It was

clear from the record that Stoller was improperly

attempting to use Rule 60(b) as a substitute for his

dismissed appeal. Remanding for additional explication

would be a pointless gesture.

Finally, Stoller argues that the district court erred

when it declared that he was: a vexatious litigant and

barred him from filing additional lawsuits without

obtaining prior authorization. That is not properly an

issue in this appeal, however. The present appeal

involves only Stoller’s challenge to the Rule 60(b) order;

the court’s decision on the underlying merits is not

before us. If Stoller is instead trying to challenge the

order issued by the Executive Committee of the

Northern District of [llinois barring him from filing new

lawsuits without leave from the Committee, that too is

something beyond the scope of this appeal. Stoller could

not have challenged the Executive Committee’s order in

his Rule 60(b) motion and, in any event, he already has

appealed the Executive Committee’s order to this court.

That appeal (No. 07-1934) was dismissed for failure to

pay the docketing fee. Finally, we note that on August 23,

2007, through an order entered in Google Inc. v. Central

Mfg. Co. et al., Nos. 07-1569, 07- 1612, and 07-1651, this

court barred Stoller from filing any new appeals until he

pays a fine of $10,000; the present appeal, filed on April

24, 2007, is the last one Stoller lodged before the filing

bar took effect. See also Google, Inc. v. Central Mfg. Inc.,

No. 07-1651, 2008 WL 896376, at *1 (7th Cir. Apr. 2,

2008).

AFFIRMED.